The Fat Suit

November 17, 2002|By Libby Copeland The Washington Post

Oh, it's important to be on the right side and all, but what really gets John Banzhaf going is being on the short side of a long-odds fight. He likes to position himself as a little fellow with a pickax, digging away at social ills and wrongheaded industries. He did it with tobacco for 35 years, arguing for nonsmokers' rights, helping eliminate cigarette advertising on television, helping establish nonsmoking sections in public places and smoking bans on planes, trains and buses.

Now, he wants to sue for obesity.

The public, he allows, may not be ready for this. But they'll come around. After all, this is about "using legal action for what seems to me very important," says Banzhaf, an unflappable, roly-poly law professor at George Washington University. "Saving human lives."

It's too bad it has to be this way, Banzhaf says, but when legislators don't step up to the plate, lawyers have to push for social reform. So, in the past, for a range of causes, he has sued Hertz, Spiro Agnew and the Interstate Commerce Commission. He has filed legal complaints against dry cleaners, male-only clubs, the National Park Service and Rep. Barney Frank. He's delivered a Freedom of Information Act to the office of the president. Sue 'em all!

In the obesity cause, Banzhaf has established himself smack dab in the center of all the controversy. (And, um, publicity.) He's been attending conferences on the legal tactics, advising on key lawsuits, and talking up the issue to everyone.

Who will he sue now? For starters, schools with food contracts that provide sugary and fatty food, and fast-food companies in general. His argument: Many food companies have neglected to tell consumers just how bad their products are, made misleading health claims and exerted enormous pressure on children, their most gullible audience. Eventually, he predicts, states could sue to recover the billions they spend on obesity-related diseases (diabetes, strokes), and then the companies could settle, presumably for oodles of money, as the tobacco companies did.

Banzhaf, 62, is an unpaid, informal adviser on two New York lawsuits brought by attorney Samuel Hirsch: one filed in July against four fast-food companies on behalf of a 5-foot-11, 270-pound man, and another filed weeks later against McDonald's on behalf of two overweight young people. Although it looks as if only the latter suit will go forward, Banzhaf thinks both are a harbinger.

Go ahead, call the Big Fat fight frivolous. He's heard it before.

"Everything's always called frivolous," Banzhaf says with a twinkle, "but we just keep winning the damn things."

A powerful industry

Obesity is a serious health crisis. Last December, then-Surgeon General David Satcher said obesity might surpass tobacco as the nation's leading cause of preventable deaths, linking it to 300,000 deaths annually. (Tobacco is linked to 430,000.) Sixty percent of adults and 13 percent of children are overweight or obese, Satcher said.

Those fighting Big Fat frame their enemy as a powerful industry with enormous influence on attitudes toward food and nutrition and a considerable stake in getting the public to eat, a lot.

"It has become a social norm that it's OK to drink soft drinks all the time," says Marion Nestle, chair of New York University's Department of Nutrition, whose new book, Food Politics (University of California Press, $29.95), sharply criticizes the food industry. "There isn't a place where it's not OK to eat. You have to ask, when did this happen and how did it happen, and to whose advantage did it happen?"

Banzhaf and Nestle are part of a growing movement that wants to do something about fat America. She'd like to get food marketing out of schools. Banzhaf suggests raising health insurance costs for the obese.

And, of course, suing.

Banzhaf sees the obesity lawsuits as just the latest in his lifelong effort toward "pushing the boundaries." He says he has nothing personal against the food industry, that he will make no money from the New York litigation.

No, it's nothing personal. It's about personality. On his Web site (banzhaf.net), he boasts of having been called a "legal terrorist." He's built a public persona on this principle, for decades teaching a legal activism course that encourages law students to bring to court social reform lawsuits. His favorite saying -- "Sue the bastards" -- has been linked to him so many times, it's downright trite to bring it up.

Certain people rather dislike him.

"He is the loudest and most relentless voice," says John Doyle of the Center for Consumer Freedom, a Washington-based restaurant trade association.

If you ask Doyle -- and indeed, some of the same lawyers who pushed for Big Tobacco litigation along with Banzhaf -- the problem with suing Big Fat is that it ignores the consumer's free will.